J & M O'Brien Enterprises Pty Ltd v Shell Company of Australia [1982] FCA 97

J & M O'Brien Enterprises Pty Ltd v Shell Company of Australia [1982] FCA 97

The lease, construed as a whole, showed that The Shell Company of Australia Limited and J. & M. O'Brien Enterprises Pty. Limited were the parties, and that John James O'Brien and Monica Alice O'Brien were not parties to it. The deed was executed by the company under seal, the O'Briens' names appeared in the schedule with the word 'directors', and the agreed evidence indicated no intention that they personally be parties. Because they were not parties to the lease, judgment was entered for them. Costs were awarded because they had been specially joined, allegations were directed to their personal conduct including a serious allegation involving specific criminal behaviour, and no...

Jurisdiction
Australia
Judgment Date
03 June 1982
Procedural Posture
Application in Cross Claim Concerning a Lease / Ex Tempore Judgment on an Application by John James O'brien and Monica Alice O'brien for Judgment After the Applicant's Evidence in Chief and the Respondent's Evidence in Defence and on the Cross Claim
Outcome
Judgment entered for John James O'Brien and Monica Alice O'Brien with costs.
Legal Topics
['construction of Lease Deed' 'identification of Parties to Lease' 'company Execution Under Seal' 'extrinsic Evidence and Subsequent Conduct' 'separate Representation by Counsel' 'order 29']
['contract Law' 'property Law' 'civil Procedure' 'costs'] ['construction of Lease Deed' 'identification of Parties to Lease' 'company Execution Under Seal' 'extrinsic Evidence and Subsequent Conduct' 'separate Representation by Counsel' 'order 29']

Case Brief

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Procedural Posture

Application in Cross Claim Concerning a Lease / Ex Tempore Judgment on an Application by John James O'brien and Monica Alice O'brien for Judgment After the Applicant's Evidence in Chief and the Respondent's Evidence in Defence and on the Cross Claim

Legal Issues

  1. 1 ["Whether John James O'Brien and Monica Alice O'Brien were parties to the lease of the premises by The Shell Company of Australia Limited." "Whether judgment in favour of John James O'Brien and Monica Alice O'Brien should carry costs." 'Whether any costs should be reduced because of separate representation by counsel or because the application could have been made earlier.']

Ratio Decidendi

The lease, construed as a whole, showed that The Shell Company of Australia Limited and J. & M. O'Brien Enterprises Pty. Limited were the parties, and that John James O'Brien and Monica Alice O'Brien were not parties to it. The deed was executed by the company under seal, the O'Briens' names appeared in the schedule with the word 'directors', and the agreed evidence indicated no intention that they personally be parties. Because they were not parties to the lease, judgment was entered for them. Costs were awarded because they had been specially joined, allegations were directed to their personal conduct including a serious allegation involving specific criminal behaviour, and no...

Court Disposition

Judgment entered for John James O'Brien and Monica Alice O'Brien with costs.

Orders

  • ["Judgment be entered for J.J. O'Brien and M.A. O'Brien with costs."]